I Financial Services
EFFECTIVE DATE: March 19, 2009
LESSOR: DELL FINANCIAL SERVICES L.L.C. MASTER LEASE AGREEMENT N° 4458532 LESSEE:City of Redondo Beach, California
Payment Address:
Payment Processing Center Principal Address:
4319 Collection Center Dr. 415 Diamond St
Chicago, IL 60693
Redonde Beach, CA 90277
Fax:*
Attention: *
This Master. Lease Agreement (this "Agreement"), effective as of the Effective the Commencement Date shall be added to the first payment of Rent. All Date set forth above, is between the Lessor and Lessee named above. Rent and other amounts due and payable under this Agreement or any Capilalized terms have the meaning set forth in this Agreement. Schedule shall be paid to Lessor in lawful funds of the United States of
1. LEASE. America al the payment address for Lessor set forth above or at such other Lessor hereby leases to Lesseo and Lessee hereby leases the equipment address as lessor may designate in writing from time to time. Whenever Rent (Products"), Software (defined below), and services or fees, whare applicable, and other amounts payable under a Lease are not paid when due, lessee as described in any lease schedule ("Schedule"). Each Schedule shall shall pay interest on such amounts at a rate equal to the lesser of 1% per incorporate by reference the terms and conditions of this Agreement and month or the highest such rate permitted by applicable law ("Ovordue Rate"). contain such other terns as are agreed to by Lessee and Lessor. Rent shall bo due and payable whether or not fesse has received an invoice Schedule shall constitute a separato lease of Products ("Lease"). In the event showing such Rent is due. Late charges and reasonable altomey's fees of any conflict between the terms of a Schedule and the terms of this necessary to recover Rent and other amounts owed hereunder are considered an integral part of this Agreement.
Agreement, the terms of the Schedule shall prevail. Lessor reserves all rights to the Products not specifically granted to Lessee in this Agreement or in a EACH LEASE SHALL BE A NET LEASE. in addition to Rent, Lessee Schedule. Execution of this Agreement does not create an obligation of either shall pay sales, use, excise, purchase, property, added value or other taxes, party lo lease to or from the other. fees, levies or assessments lawfully assessed or levied against Lessor or
2. ACCEPTANCE DATE; SCHEDULE. with respect to the Products and the Lease ("collectively cusloms, dulies or surcharges on imports or exports (collectively, "Duties"). (a) Subject to any right of return provided by the Product seller ("Seller") plus all expenses incurred in connection with Lessor's purchase named on the Schedule, Products are deemed lo have been irrevocably Lessee's use of the Products, including but not limited to shipment, delivery. accepled by Lessee upon delivery to Lessee's ship to location ("Acceptance installation, and insurance. Unless Lessee provides Lessor with a lax Date"). Lessee shall be solely responsible for unpacking, inspecting and exemption certificate acceptable to the relevant taxing authority prior to installing the Products. Lessor's payment of such Taxes, Lessee shall pay to Lessor all Taxes and Duties upon demand by tessor. Lessor may, at its option, invoice lessee for (b) Lessor shall deliver to Lessee a Schedule for Products. Lessee agrees estimated personal property tax with the Rent Paymenl. Lessee shall pay all to sign or otherwise authenticate (as defined under the Uniform Commercial ulitity and other charges incured in the use and maintenance of the Code, "UCC") and return each Schedule by the later of the Acceptance Dale or five (5) days after Losseo roceives a Schedule from Lessor. If the (c) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5, LESSEE'S Schedule is not signed or otherwise authenticated by Lessee within the time OBLIGATION TO PAY ALL RENT AND OTHER AMOUNTS WHEN DUE provided in the prior sentence, then upon written notice from Lessor and AND TO OTHERWISE PERFORM AS REQUIRED UNDER THIS Lessee's failure to cure within five (5) days of such nofice, Lessor may AGREEMENT AND EACH SCHEDULE SHALL BE ABSOLUTE AND require the Lessee lo purchase the Products by paying the Product Cost UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY ABATEMENT, charged by the Seller, plus any shipping charges, Taxes or Duties (defined REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM, INTERRUPTION, below) and Interest at the Overdue Rate accruing from the date the DEFERMENT OR RECOUPMENT FOR ANY REASON WHATSOEVER Products are shipped through the date of payment. If Lessee roturns any WHETHER ARISING OUT OF ANY CLAIMS BY LESSEE AGAINST nased Producis in accordance with the Soller's return poliey, it will nolify LESSOR, LESSOR'S ASSIGNS, THE SELLER, OR THE SUPPLIER OR Lessor. When Lessor receives a credit from the Seller for the returned MANUFACTURER OF THE PRODUCTS, TOTAL OR PARTIAL IOSS OF Product, the Schedule will be deemed amended to roflect the return of the THE PRODUCTS OR THEIR USE OR POSSESSION, OR OTHERWISE. If Product and lessor will adjust its billing records and Lessee's involce for the any Product is unsatisfactory for any reason, Lessee shall make its claim In addition, Lessee and Lessor agree that a signed solely against the Seller of such Product (or the Liconsor in the case of Schedule may be amended by written notice from Lessor to Lessee provided Sofiware, as defined below) and shall nevertheless pay Lossor or its assignee such nolico is (i) lo correct the serial (or service tag) number of Products or (i) all amounts due and payable under the Lease. to adjust the related Rent (defined below) on the Schedule (any increase up to 15% or any decrease) caused by any change made by Lessee in Lessee's 5. APPROPRIATION OF FUNDS. order with the Seller.
Lessee intends to continue each Schedule for the Primary Term and lo pay the Rent and other amounts due thereunder. Lessee reasonably The initial term (tho "Primary Term") for each Loase shall begin on the date believes that legally available funds in an amount sufficient to pay all Rent during the Primary Term can be obtained and agrees to do all things lawfully as the Commencement within its poor to oblain and maintain funds from which the Rent and other "Commencement Date"). The period beginning on the Acceptance Date amounts due may be paid. and ending on the last day of the Primary Term, together with any renewals or extonsions thereof, is defined as the "Lease Term. The Lease is non- Lessee may terminate a Schedule in whole, but not in part by giving cancelable by Lessee, except as expressly provided in Section 5. at least sixly (60) days notice prior to the end of the then curront Fiscal
4. RENT; TAXES; PAYMENT OBLIGATION. Period (as defined in the Lessee's Secretary/Clerk's Certificate provided to Lessor) certifying that: (1) sufficient funds were. not appropriated and (a) The rental payment amount ("Rent"), and the payment period for each budgeted by Lessee's governing body or will not otherwise be availabte to inelaliment of Rent (Payment Period") shall be stated in the Schedule. continue the Lease beyond the current Fiscal Period; and (2) that the prorated portion of Rent calculated based on a 30-dlay month, 90-day quarter Losse has exhausted all funds legally available for payment of the Rent or 360-tlay year (as appropriate) for the poriod from the Acceplance Date to beyond the current Fiscal Period. Upon termination of the Schedule, Lessee's obligations under the Schedule (except those that expressly DFS Public MI.A.08252008dolx Page 1 of 4
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survive the end of the lease Term) and any interest in the Products shall cease and Lessee shall surrender the Products in accordance with Seclion
8. Nolwithslanding the foregoing, Lessee agrees that, without creating a provide the following insurance: (x) casually loss insurance for the Products for accordance with the standards set forth herein. At all limas, Lessee shall its current Fiscal Period, it will use its best efforts to take all action pledge, lien or encumbrance upon funds available to Lessee in other fhan no less lhan the Slipulated Loss Value (defined below) naming Lessor as a loss necessary to avoid termination of a Schedule, including making budgel payee: (y) liability insuranco with respect to the Products for no less than an requests for each Fiscal Period during each applicable Lease Term for and (z) such olher insurance as may be required by law which names Lessee amount as required by Lessor, with Lessor named as an additional insured; adequate funds to meet its Lease obligations and to confinue the Schedule as an insured and Lessor as an additional insured. Upon Lessor's prior wrillen insurance policy or as provided for under state law. Lessee shall provide consent, Lessee may provide this insurance pursuant to Lessee's existing self and ofher amounts due under a Lease conslitutes a current expense of Lessor and Lossee intend that the obligation of Lessee to pay Rent Lessor with either an annual certificate of third party insurance of a witten Lessee and is not to be construed to be a debt in contravention of any descriplion of ils self insurance policy or relevant law, as applicable. certificate of insurance will provide thal Lessor shall receive at least ten (10) conslitutional
statutory fimitation on days prior writen notice of any material change to or cancellation of the indebtedness or as a pladge of funds beyond lessee's current Fiscal Insurance policy or Lessee's self-insurance program, if previously approved by
6. LICENSED MATERIALS. with the standards herein, Lessor has the right, but not the obligation, to obtain Lessor. If Lossee does not give Lessor evidence of insurance in accordance Soilware means any operating such insurance covering Lessors interest in the Products for the Lease Term, including renewals. included with the Products (colleclively, "Soflware"). "Licensed Materials" are system sofiware or computer programs If Lossor oblains such insurance, Lessor will add a any manuals and documents, end user license agreements, evidence of Lessor for the insurance premium and lessor's then current insurance monthly, quarlerly or annual charge (as appropriate) to the Rent to reimburse licenses, including without limitation, any carlificate of authenticity and other administralive fee. affixed as a label to the Products. Lessee agrees that this Agreement and any media provided in connection with such Software, ail as delivered with or If the Products are lost, stolen, destroyed, damaged beyond repair or Lease (including the sale of any Product pursuant to any purchase option) does not grant any title or interest in Software or Licensed Materials. Any use such Products ("Casually Products"), Lessee shall promplly (i) nolify Lessor in the event of any condemnation, confiscation, seizure or expropriation of of the torms "sell." "purchase," "license." "lease,"
Agreoment or any Schedule with respect to Licensed Materials shall be and the like in this Products. The Stipulaled Loss Value is an amount equal to the sum of (a) all of the same and ii) pay to lessor the Stipulated Loss Value for the Casually interpreted in accordance with his Seclion 6. Rent and other amounts then due and owing (including interest at the
7. USE; LOCATION; INSPECTION. plus (b) the present value of all future Rent to becorne due under the Lease Overdue Rate from the due date unlil payment is received) under the Lease, Lessee shall (a) comply with all terms and conditions of any Licensed during the remainder of the Lease Term, plus (c) the prosent value of the estimated in place Fair Market Value of the Product at the end of the with the Seller's supply contract and any service provider maintenance and Materials and (b) possess and operate the Products only (i) in accordance Primary Term as determined by Lessor; plus (d) all other amounts to operating manuals, documentation and applicable laws; and (i) for he become due and owing during the remaining Lease Torm. Unless priced as business purposes of Lessee. Lessee agrees not to move Products from the a tax-exempt Schodule, each of (b) and (c) shall be cafculated using the location(s) specified in the Schedule without providing Lessor with at feast 30 federal funds rate target reported in the Wall Strel Journal on the Commencement Date of the applicable Schedule United Statas and at Lossee's expense. Without notice to Lessor, lessee days prior written notice, and then only to a location within the continental applicable 1o lax-exempt Schedufes shall be federal funds rate target The discount rate may temporarily use laptop compulers al other locations, including oulside the applicable Schedule less 100 basis points. reported in the Wall Street Journal on the Commencement Date of the United States, provided Lessee complies with the United States Export Control Administration Act of 1979 and the Export Administration Act of 10. ALTERATIONS. similar legislalion). 1085, as those Acts are amended from time to time (or any successor or Lossoe shall, at its expense, make such alterations to the Products during the securily requirements, Lessee shall allow Lessor to inspect the premises Provided Lessor complies with Lessee's reasonable Lease Ten as are logally required or provided at no charge by Seller. where the Products are located from time to time during reasonable hours Lessee may make other alterations, additions or improvements lo the Products provided that any alleration, addition or improvement shall be readily obligations under this Agreement. after reasonable notice in order lo confim Lessee's compliance with its removable and shall not materially impair the value or utility of the Products.
Upon the return of any Product lo Lessor, any alteration, addition or improvement that is not removed by Lessee shall become the properly of Lessor free and clear of all liens and encumbrances.
Products purchased pursuant to any purchase option under the Lease, If any, At the expiration or earier termination of any Schedule, and except for
11. REPRESENTATIONS AND WARRANTIES OF LESSEE.
them to Lessor at a place wilhin the contiguous United States designated by Lessee will (a) remove ail proprietary data from the Products; and (b) retum Lossoe represents, warrants and covenants to Lessor and will provide to Lessor. Upon return of the Products, Lessee's right to the operating system Lossor at Lessor's request all documents deemed necessary or appropriate Software in refumed Products will terminate and Lessee will return the or Clerk Certificatos, essential use information or documents (such as by Lessor, including Certificates of Insurance, financial statements, Secretary the original operaling syslem Software. Products with the original certificate of authenticity (altached and unaltered) for affidavits, notices and similar instruments in a form satisfactory to Lessor and package the Products for return in a manner which will prolect them from Lessee agrees to deinstall and Opinions of Counsel (in. subslantially such form as provided to Lessee by Lessee shall pay all costs associated with the packaging and Lessor and otherwise salisfactory to Lessor) to the effect that, as of the time return of the Producls and shall promptly reimburse Lessor for all costs and Lessee enters into this Agreement and each Schedule that:
If Lesseo fails to relur all of the Products at the expiration of the Lease expensos for missing or damaged Products or operating system Software Lessee is an entity duly organized and exisling under and by virtue of Term or earlier termination (other than for non-appropriation) in accordance the authorizing statute or constitulional provisions of its state and is a state or with this Section, the Lease Term with respect to the Producis that are not political subdivision thereof as described in Section 103(a) of the Internal retornod shall continue to be renewed as described in the Schedule. thereunder as in offect and applicable to the Agreemont or any Schedule, with Revenue Code of 1986, as amended, and the regulations promulgaled
0. RISK OF LOSS; MAINTENANCE; INSURANCE. full power and authorily to enter into this Agreement and any Schedules and perform all of its obligations under the Leases:
unlit the Products are roturned to lessor's designated relum location or From the time the Products are delivered to Lessee's ship to location This Agreement and each Schedule have been duly authorized. to the Producis; (ii) to mainlain the Products in good operaling condition and purchased by Lessee, Lessee agrees: (i) lo assume the risk of loss or damage board at a regularly convened meeling and allended by the requisite authenticaled and delivered by Lessee by proper action of its governing appearance, ordinary wear and tear excepted, (ili) to comply with all majority of board members, or by other appropriato official authentication, ropair any reparable damage to the Products. For the Lease Term, Lessee requiremonts necessary to enforce all warranty rights; and (iv) to promplly occurred in order to ensure the validity and enforceability of this Agreement as applicable, and all requiremonts have been met and procedures have against Lessee:
shall ensuro that the Products are covered by a manufacturer approved maintenance agreoment or, with lessor's prior consent, are self-maintained in DFS Public MLA.0825200Bdotx binding obligations of Lessee, enforceable in accordance with their terms; This Agreement and oach Schedule constitute the valid, legal and Pago 2 of 4
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from any federal, state or local governmental authorily or insfrumentality No other approval, consent or withholding of objection is required or any Schedule and the transactions contemplated thereby; with respoct to the entering into or performance by Lessee of the Agreement (a) Lessee fails lo pay any Rent or other amounts payable under this Agreement or any Schedule within 15 days after the date such payment is state and federal laws as may bo applicable to the Agreement and any Lossee has complied with such public bidding requirements and other (b) Any representation or warranty made by Lessee to Lessor in connection Schedufe and the acquisition by Lessee of the Products: made materially untrue or incorrect; with this Agreement, any Schedule or any other Documents is at the lime will not (i) violate The entering into and performance of the Agreement or any Schedule any judgment, order, law or regulalion applicable to (c) Lessee falls to comply with any other obligation or provision of this Lessee; (i) result in any breach of, or conslitute a defaull under, any instrument to which the Lessee is a party or by which it or its assets may be after notice from Lessor; Agreement or any Schedule and such failure shall have continued for 30 days other encumbrance upon any assets of the Lessee or on the Products, other bound; or (ili) result in the creation of any lien, charge, security interest or (d) Lessee (l) Is generally not paying its debis as they become due or (ii) than those created pursuant to this Agreement; insolvency law, or any such law is invoked against or with respect to Lessee or lakes aclion for the purpose of invoking the protection of any bankruptcy or There are no actions, suils, proceedings, inquiries or investigations, at its properly and such petition is not dismissed within 60 days; law or in equity, before or by any court, public board or body, pending or (0) threatened against or alfecting Lessee, Any provision of this Agreement ceases to be valid and binding on knowledge and belief is there any basis therefor, which if determined nor to the best of Lessee's Lessae, is declared null and void, or its validity or enforceabilily is contested Lossee to fulfill its obligations under the Agreement or any Schedule; adversely 1o Lessee will have a malerial advorse effect on the abilily of provision would materially adversely affect the rights or security of Lessor, or by Lessee or any governmental agency or authorily whereby the loss of such The Products are essenlial to the proper, efficient and economic Lesseo denles any further liability or obligalion under this Agreement; or Lessee expecis to make Immediate use of the Producis, for which it has an operation of Lessee or to the services which Lessee provides to its cilizens. existing or hereafter entered into with Lessor or Seller or any assigne of Lessee is in default under any olher lease, contract, or obligation now applicable Loase Term. immediate need that is neither temporary nor expocted to diminish during the 14. REMEDIES; TERMINATION. performing one or more of Lessee's governmental or proprietary functions The Products will be used for the sole purpose of consistent within the permissible scope of Lessee's authority; and (including its rights to the Products), but not its obligations (hereunder, shall (a) Upon an Event of Default under any Schedule, all of Lessee's rights budgeled and appropriated sufficient funds to make all Rent payments and Lessee has, in accordance with the requirements of law, fully more of the following remedies in its sole discretion: automatically be canceled without notice and Lessor may exercise one or Fiscal Period, and such funds have not bean expended for other purposes. other obligalions under this Agreement and any Schedule during the curront (1) require Lessee to retum any and all such Products in accordance
12. WARRANTY ASSIGNMENT; EXCLUSION OF WARRANTIES; location designated by lessor and to grant Lessor the right to enter the with Section 8, or if requested by Lessor, to assemble the Products in a single LIMITATIONS ON LIABILITY; FINANCE I.EASE. promises where such Products are located (regardless of where assembled) for the purpose of repossassion;
assigns to Leasce for the Lease Ter the beneft of any Product warranty and (a) Provided no Event of Default has occurred and is continting, Lessor (ii) sell, lease or otherwise dispose of any or all Products (as agent and right of return provided by any Seller. allomey-in fact for Lessee to the extent necessary) upon such terms and in (b) LESSEE ACKNOWLEDGES THAT LESSOR DID NOT SELECT, discretion ("Disposition"): such manner (at public or private sale) as Lessor deems advisable in ils sole LESSEE HAS MADE THE SELECTION OF PRODUCTS BASED UPON ITS MANUFACTURE, SUPPLY OR LICENSE ANY PRODUCT AND THAT (i) declare immediately due and payable as a pre-estimate of liquidated STATEMENTS MADE BY LESSOR OR ITS AGENTS. LESSOR LEASES OWN JUDGMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE ON the Products in lieu of any further Rent, in which event Lessee shall pay such damages for loss of bargain and not as a penalty, the Stipulated Loss Value of IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY THE PRODUCTS AS-IS AND MAKES NO WARRANTY, EXPRESS. amount to Lessor within 10 days after the date of Lessor's demand; or PARTICULAR PURPOSE WARRANTIES OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A (including action for specific performance) to enforce the performance by (iv) proceed by appropriate court action either at law or in equity MIGHT HAVE AGAINST LESSOR OR ITS ASSIGNEE FOR ANY LOSS, LESSEE HEREBY WAIVES ANY CLAIM IT Lessee or recover damages associated with such Event of Default or exercise DAMAGE OR EXPENSE CAUSED BY OR WITH RESPECT TO ANY any other remedy available fo lessor in law or in equity. (c) IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY ACTUAL., including reasonable aftorney fees, in connection with or related to an Event (b) Lessee shall pay all costs and expenses arising or incurred by Lossor, ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY SCHEDULE SPECIAL, INDIRECT. INGIDENTAL OR CONSEQUENTIAL DAMAGES Disposition of any or all Products ("Default Expenses"). In the event Lessor of Dofaull or the repossession, transportation, re-furbishing, storage and ADVISED IN ADVANCE OF THE POSSIBILITY OR CERTAINTY OF SUCH OR THE SALE, LEASE OR USE OF ANY PRODUCTS EVEN IF LESSOR IS Products, Lessor shall credit such proceeds against the owed Stipulated Loss recovers proceeds (net of Default Expenses) from its Disposition of the FAILURE OF ESSENTIAL DAMAGES AND EVEN IF LESSEE ASSERTS OR ESTABLISHES A to this Section, to the extent the proceeds of the Disposition (net of Delauit Value. Lessee shall remain liable lo Lessor for any deficlency. With respect PROVIDED IN THIS AGREEMENT. PURPOSE OF ANY LIMITED REMEDY Expensos) oxceed the Stipufaled Loss Value owed under. the Lease, or (cl) Lessee agrees that if is the intent of both parties that each lease qualify all other amounts owing under the Lease, Lessee shall be entitled to such Lessee has paid Lessor the Stipulated Loss Value, the Default Expenses and as a statulory finance lease under Arlicle excess and shall have no further obligations with respect to such Loase. All acknowledges either (0) that Lessee has reviewed and approved any written 2A of, the UCC. supply contract covering the Products purchased from the Seller for lease to Lessor soparately or together. rights of Lessor are cumulative and not afternalive and may be exercised by Lessee or (il) that Lessor has informed or advised Lessee, in writing, either previously or by this Agreement, that Lessee may have rights under the supply 15. QUIET ENJOYMENT. contact the Seller for a description of any such rights. TO THE FULLEST conlact evidencing the purchase of the Products and that Lessee should Lessor shall not interfere with Lessee's right to possession and quiet EXTENT PERMITTED BY APPLICABLE LAW, LESSEE HEREBY WAIVES Default has occurred or is continuing. Lessor represents and warrants that as enjoyment of Products during the relevant Lease Term, provided no Event of ARTICLE 2A OF THE UCC. ALL RIGHTS AND REMEDIES CONFERRED LIPON A LESSEF BY of the Commencement Date of the applicable Schedule, Lessor has the right fo lease the Products to Lessee,
13. EVENTS OF DEFAULT. 16. INDEMNIFICATION.
I shall be an event of default hereunder and under any Schedufe (Event of Default') if: To the oxtent permitted by law, Lessee shall indemnify, detend and hole! DFS Puble MLA. 00252008 dolx representatives and agents harmless from and against, all cfaims, liabilities, Lessor, its assignees, and their respective officers, direciors, employees,
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the selection, manufacture, possession, ownership, use, condition, or relum of arising from or incurred in connection with this Agreemen, any Schedufe, or any Products (including Claims for parsonal injury or death or damage to (a) The headings used in this Agreement are for convenience only and shall have no legal effect. subsequent use or Disposition of the Products or any data in or alteration of properly, and to the extent Lessee is responsible, Claims related to the strict construction in favor of or against either party. This Agrcement shall be interpreted without any gross negligence or willful misconduct of Lessor. Lessee shall be responsible the Products. This indemnity shall not extend to any loss caused solely by the (b) The provisions of Seclions 6, 8, 11, 12(b), 12(c), 12(d), 16, 21 and 22 for the delense and resolution of such Claim at ils expense and shall pay any this Agreement or any Schedule. shall continue in full force and effect even after the fermination or expiration of by Lessor or any other person indemnified hereunder; provided, however, that amount for resolution and all costs and damages awarded against or incurred (c) Failure of Lessor at any time to require Lessee's performance of any defense of such Claim with counsel of its choice and at ils expense and to any person Indeninified hereunder shall have the right to participate in the No term, condition or provision of this Agreement or any Schedule shall be obligation shall not affect the right to require performance of that obligation. approve any such resolution. Lessee shall keep Lessor informed at all times as lo the status of the Claim. signed by a duly authorized representative of Lessor. A valid waiver is limited waived or deemed to have been waived by Lessor unless it is in witing and
17. OWNERSHIP; LIENS AND ENCUMBRANCES; LABELS. to the specific situation for which it was given.
As between Lessor and Lessee, lille to the Products (other than the (d) Lessee shail furnish such financial statements of Lessee (prepared in accordance with generally accepted
Licensed Materials) is and shall remain with Lessor. accounting principles) considered personal properly and Lessee shall, at Lassee's expense, keep Informalion as Lessor may from time to time reasonably request. those arising (hrough the acts of lessor) and shall immediately notify Lessor if the Products free and clear of liens and encumbrances of any kind (except to any extent (other than provisions going to the essence of this Agreement) (e) If any provision(s) of this Agreement is deemed invalid or unenforceable Lessor's interest is subjeci to compromise. Lessee shall not remove, cover, or aller plates, labels, or other markings upon Products by Lessor, Seller or any the fullest extent permitled by law) of the remainder of this Agreement and the the same shall not in any respect affect the validity, legality or enforceability (to parties shall use their best efforts to
unenforceable provision with an enforceable provision approximating, to the replace such illegal. invalid or
18. NON-PERFORMANCE BY LESSEE. extent possible, the original intont of the parlies.
Schedule, Lessor shall have the right but not the obligation to effect such If Lessee shall fail to perform any of its obligalions hereunder or under any Unless otherwise provided, all obligations hereunder shall be performed performance and Lessee shall promptly reimburse Lessor for all out of pocket or observed at the respeclive party's expense. with interes at the Overdue Rate. and olher reasonable expenses incurred in connection with such performance, (g) Lessee shall lake any aclion reasonably requested by Lessor for the purpose of fully effectuating the intent and purposes of this Agreement or any
19. NOTICES. Schedule. If any Lease is determined to be other than a true lease, Lessee hereby grants to Lessor a first priority security interest in the Products and all proceeds thereof. shall be given in writing and, Lessee acknowledges that by signing this Agreement, communications in the ordinary course of business, shall be delivered by except for billings Lossee has authorized Lessor to file any financing statements or related filings overnight courier service, delivered personally or sent by certified mail, relum copy of this Agreement or any Schedule in lieu of a financing statement. as Lessor may reasonably deem necessary or appropriate. Lessor may fle a in which case the effective date will be four (4) Business Days after the dato of receipt requested, and shall be effective on the date of receipt unless mailed, mailing. Notices to Lessor by Lessee shall be sent fo: Dell Financial Services counterparts each of which when so execuled or otherwise authenficated and (h) This Agreement and any Schedule may be signed in any number of L.L.C., Legal Department, One Dell Way, Round Rock, TX 78682, or such delivered shall be an original but all counterparts shall togetlier constifute one other mailing address designated in writing by Lessor. Notice lo Lessee shall and the same Instrument. he to the address on the first page of this Agreement or such other malling chattel paper as that term is defined in the UCC, no security inferest may be To the extent each Schedule would constitute address designated in writing by Lessee. created through the transfer or control or possession, as applicable, of a 20, ASSIGNMENT. counterpart of a Schedule other than the original in Lessor's possession (a) LESSEE MAY ASSIGN THIS AGREEMENT OR ANY SCHEDULE, OR marked by Lessor as either "original" or "Countorpart Number 1".
SUBLEASE ANY PRODUCTS) WITH THE PRIOR WRITTEN CONSENT OF set forth all of the underslandings and agreements belween the parlies and This Agreement and the Schedules hereto between Lessor and Lessee LESSOR (SUCH CONSENT NOT TO BE UNREASONABLY WITHHELD).
LESSOR, AT ITS SOLE DISCRETION, MAY ASSESS AN ADMINISTRATIVE prior written or FEE FOR ANY APPROVED ASSIGNMENT OR SUBLEASE. No assignment understandings, or agreemonts between, the parties relating to the subject matter contained herein. this Agreement or Schedule. or sublease shall in any way discharge Lesse's obligalions to Lossor under Schedulo may be amended Except as permitted herein, this Agreement and any authenticated by lessor and Lessee. only by a wriling duly signed or otherwise (b) Lessor may at any tine without notice to Lessee, but subject to the rights of Lessee, transfer, assign,or grant a securily interest in any Product, this if Lessee delivers this signed Master Lease, or any Schedule, Agreement, any Schedule, or any rights and obligations hereunder or "Document") to Lessor by facsimile Iransmission, and Lessor does not amendment or other document related to the Master Lease (each a thereunder in whole or in part. Lesseo hereby consents to such assignments, agrees to comply fully with the termis thereof, and agrees to execule and raceive all of the pages of that Document, Lessee agrees that, except for Instruments reasonably requested to effect such assignment. deliver promptly such acknowledgments, opinions of counsel and other to the Document from Lessor's dalabase which conforms to the version any pagos which require a signature, Lossor may supply the missing pages (c) Subject to the foregoing, this Agreement and each Schedule shall be Lessor as an e-mail allachment, facsimile Iransmission or by U.S. mail, number at the bottom of the page. If Lessee delivers a signed Document to and assigns. binding upon and inure to the benefit of Lessor, Lessee and their successors Lessee acknowledges that Lessor is relying on Lessea's representation that Document has not been altered. notwithstanding any rule of evidence to the contrary, in any hearing, trial or Lessee further agrees. that,
21. GOVERNING LAW; JURISDICTION AND VENUE; WAIVER OF JURY TRIAL, proceeding of any kind with respect to a Document, Lessor may produce a or as an e-mail altachment and such signed copy shall be deemed to be the tangible copy of the Document transmilled by Lessee to Lessor by facsimile California LAW WITHOUT REGARD TO ITS CONFLICTS OF LAW THIS AGREEMENT AND EACH SCHEDULE SHALL BE GOVERNED BY original of tho Document.
PRINCIPLES AND, TO THE EXTENT APPLICABLE, THE ELECTRONIC constitutes chattel paper under the Uniform Commercial Code, the To the extent (if any) that the Document CONSENTS TO THE JURISDICTION OF ANY FEDERAL COURT LOCATED SIGNATURES IN GIOBAI. AND NATIONAL. COMMERCE ACT, LESSEE or its assignee, from time to time, as the copy available for access and authortalive copy of the Document shall be the copy designated by Lessor VENUE IN SUCH COURT, AND FURTHER WAIVES ANY RIGHT TO A IN Los Angeles COUNTY, California AND WAIVES ANY OBJECTION TO Identifiad as copies of the authorilalive copy. In the event of inadvertent revlew by Lessee, Lessor of its assigned. All other copies are deeined for any reason or as the result of any cause, the authorilalive copy may be destruction of the authoritative copy, or corruption of the authoritative copy
22. MISCELLANEOUS. restored from a backup or archive copy, and the restored copy shall become the authoritative copy.
DFS Pribile MI.A.08252008dotx converted into paper form. At such time, such paper copy will be dosignated At Lossor's option, this electronic record may be
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or marked as the authoritative copy of the Document.
EXECUTED by the undersigned on the dates set forth below, to be elfective as of the Effective Dale.
City of Redo So Beach, Calfonia
Lesser
APPHOVED AS TOYNAM
BY:
NAME:. Mike CoiN
TITLE: Mayor
DELL FINANCIAL SERVICES L.L.C.
"Lassor"
ATTEST:
BY: Grande Whited
NAME:
TITLE: Director, Operations Ereas Hange
DF& Pubiic MIA 08252008đotx Page 5 of 4
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